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2002 DIGILAW 924 (JHR)

Vijay Ekka alias Vijaiy Ekka v. State of Bihar

2002-08-27

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2002
Judgment By Court.- This criminal appeal has been preferred by the appellant named above against the judgment and order dated 27.11.93 passed by Shree G.K. Verma, 2nd Additional Sessions Judge, Gumla in S.T. No. 524 of 1987 whereby and whereunder appellant along with co-accused Wasil Xalxo was found guilty for the offence punishabl.3 under Sections 302/ 34 and 201/34 Indian Penal Code, and he was convicted to undergo R.I. for life for the offence under Section 302/34 Indian Penal Code and R.I. for three years for the offence under Section 201/34 Indian Penal Code. However, the sentences were ordered to run concurrently. 2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 2) of P.w. 4 Jowakim Ekka, the father of Margret Ekka, the deceased of this case recorded by P.w. 11, S.1. Kanhaiya Prasad of Simdega P.S. on 28.3.85 at 18.00 hours in the premises of the Police Station and Ext. 1/1 is the signature of EW. 4, the informant thereon regarding the occurrence which is stated to have taken place in the night of 27.3.85 between 19.00 and 19.30 hours at village Akasi Ujada Toli, P.S. Dumri district Gumla. According to the prosecution case, Margret Ekka aged about 18 or 19 years had gone for nature's call between 19.00 hours and 19.30 hours from her house near a pond in the village but she did not return in the night. It is alleged that the informant and other made search for her till 11 O'clock in the night but in vain. The prosecution case further is that the informant went to the pond aforesaid and found a hand above the surface of the water in the pond and the informant under suspicion and in presence of the villagers as well as the Mukhiya went inside the water and took out the dead body from the pond and the said body was of his daughter Margret Ekka. It is also alleged that her daughter-in-law had informed him that Margret had some affairs with the appellant and co-accused Wasil Xalxo and they were on visiting terms. 3. The appellant has pleaded not guilty to the charges levelled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case out of mere suspicion. 4. 3. The appellant has pleaded not guilty to the charges levelled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case out of mere suspicion. 4. The prosecution has in all examined 11 witnesses to substantiate the charge levelled against the appellant. P.w. 4 is the informant in this case and P.Ws. 2 and 5 are his sons and P.Ws. 6 and 10 are• his daughter-in-laws. P.w. 1 is the local sarpanch of the village. P.Ws. 3 and 7 are the witnesses of the inquest of the dead body of the deceased and their signatures are Ext. 1 and Ext. 1/2. P.w. 7 and 8 are hearsay witnesses and P.W. 9 has been tendered. P.w. 11 is the Investigating Officer of this case and Ext. 3 the formal F.I.R. and Ext. 4 the inquest report have been proved by him. It is pertinent to mention here that the medical witness has not taken oath in this case. However, the writing of the postmortem report (Ext. 5) regarding the dead body of the deceased has been proved by C.W. 1 and C.W. 2. Dr. J.P. Sanga has deposed regarding the contents of the postmortem report (Ext. 5). 5. In view of the oral and documentary evidence on the record the learned trial court has found this appellant along with co-accused Wasil Xalxo guilty for the charges levelled against them and convicted and sentenced them as stated above. 6. Assailing the impugned judgment as not only illegal rather perverse, it has been submitted by the learned counsel for the appellant that the learned court below has not at all considered the evidence on the record in proper perspective meticulously and has gravely erred in coming to the finding of the guilt of the appellant and has illegally considered the postmortem report which has been admitted into evidence, contrary to law, in absence of the evidence of the doctor conducting the postmortem examination of the dead body of the deceased and, in this view of the matter, it cannot be said that the deceased has died as a result of the injuries alleged to have been appearing on her person as well as recording the time of the death of the deceased. It has also been submitted that it is apparent from the evidence on the record that there is no ocular witness of the occurrence and even in the circumstances, emanating as per the materials on the record, do not conclusively lead to the hypothesis with the guilt of the appellant. It has also been contended that there is no iota of evidence on the record to give an inkling of the fact that this appellant had any relationship whatsoever with the deceased as well as that he is the cause of the pregnancy of the deceased and he has been implicated in this case on mere suspicion without any tangible rhyme or reason and suspicion, howsoever great, cannot take the place of proof. 7. The learned A.P.P. has very fairly submitted that there is no evidence at all on the record, either direct or circumstantial, to connect or implicate the appellant in the occurrence in question. 8. It is relevant to mention at the very outset that Ext. 5, the postmortem report of the deceased Margret Ekka, is inadmissible in evidence in the absence of the testimony of the doctor who has conducted the postmortem examination on the dead body. It is settled principle of the law that a report has to be proved by the maker thereof. Here in this case Ext. 5 has been taken into evidence as per the testimony of C. W.1 an Advocate's Clerk, as well as of the evidence of C.w. 2 Dr. G.P. Sanga, a colleague of Dr. S.M. Thakur, who is said to have conducted the postmortem on the dead body of the deceased. Therefore, Ext. 5 is not fit to be considered in this case. In the absence of the medical witness i.e. Dr. S.M. Thakur, there is no legal evidence at all regarding the cause of the death of the deceased as well as of the fact that the deceased was carrying a full time pregnancy. Further more P.Ws. 4, 2, 5, 6 and 10 are not the ocular witnesses of the occurrence in question. P.Ws. 7, 8 and 1 are hearsay witnesses. P.Ws. Further more P.Ws. 4, 2, 5, 6 and 10 are not the ocular witnesses of the occurrence in question. P.Ws. 7, 8 and 1 are hearsay witnesses. P.Ws. 4, 2, 5, 6 and 10 have simply deposed in their evidence on oath that Margret Ekka had gone at about 7 O'clock in the evening for nature's call near the pond and since then she did not return and her dead body was found in the pond in the morning of the following day. They have also deposed that the deceased had illicit relationship with this appellant as well as the co-accused Wasil Xalxo and she has conceived from them and she was on visiting terms with them. There is no medical evidence or any material such as D.N.A. test etc. on the record to connect the appellant with the feotus in question. Therefore, there is no iota of legal evidence at all on the record to connect this appellant with the deceased having pregnancy from him. Therefore, the evidence of the aforesaid witnesses regarding the appellant having illegal affairs with the deceased is not a circumstance of such a nature which definitely and unerringly points towards the guilt of the accused so as to commit the murder of the deceased. There is also no evidence at all on the record that this appellant has committed the murder of the deceased and has thrown her dead body in the pond. The suspicion howsoever grave as deposed by the witness of prosecution cannot take the place of proof as well as legal evidence. The learned court below has failed to consider the evidence meticulously in proper perspective and has gravely erred in coming to the finding of the guilt of the appellant. Therefore, the impugned judgment is unsustainable. 9. There is merit in the appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned court below is hereby set aside so far it relates to the appellant named above. The appellant is not found guilty and he is acquitted. He is also discharged from the liability of the bail bond. Let the appellant be set free forthwith if in custody and not wanted in any other case.